Problems of Substantive Differentiation Conditions of Criminal Proceedings

2016 ◽  
Vol 4 (9) ◽  
pp. 0-0
Author(s):  
Александра Боярская ◽  
Aleksandra Boyarskaya
Keyword(s):  
Criminal Law ◽  
Criminal Procedure ◽  
Criminal Proceedings ◽  
Criminal Cases ◽  
Procedural Law ◽  
Special Procedure ◽  
Court Proceedings ◽  
Judicial Procedure ◽  
The Impact ◽  
Special Order

The article discusses current issues of differentiation of criminal proceedings. The character of the impact of criminal law on procedural form of summary court proceedings. The author successively examines the substantive basis of summary court proceedings of Russian criminal trial: a special order of the trial, a special procedure for the trial at the conclusion of the pre-trial agreement, judicial procedure under Art. 226.9 of the Code of Criminal Procedure, as well as in criminal cases of private prosecution. The author concludes that the specific substantive basis is not peculiar to each of these procedures. Legislators did not specify the substantive grounds of procedure under Sec. 40.1 Code of Criminal Procedure. The court proceedings under Art. 226.9 CPC RF does not have its own substantive basis. The article concludes that all above said demonstrates the destruction of classical chords, according to which the differentiation of criminal law determines the differentiation of criminal procedural law in sphere of differentiation of criminal procedural form. Nowadays, on the contrary, the differentiation of the criminal procedure is carried out more rapidly and dictates the transformation of criminal procedural law. The article also analyzes the causes and symptoms of this trend of development of modern legislation.

scholarly journals Criminal legal basis for an expedited trial procedure provided by the chapter 40 of the Russian Criminal Procedure Code

2021 ◽  
Vol 5 (2) ◽  
pp. 192-208
Author(s):  
A. V. Boyarskaya
Keyword(s):  
Criminal Law ◽  
System Analysis ◽  
Criminal Procedure ◽  
Criminal Code ◽  
Court Ruling ◽  
Legal Basis ◽  
Criminal Proceedings ◽  
Criminal Cases ◽  
Procedure Code ◽  
Court Proceedings

The subject of study is the criminal-legal basis for an expedited procedure for adopting a court ruling when the accused person agrees with the charge. These issues are relevant, since in July 2020 the substantive legal basis of the expedited procedure in Russia was changed and now this procedure can only be applied in criminal cases of small and medium gravity.The aim of this work is to study the substantive legal basis of an expedited procedure of litigation from the point of view of the changes were made to it. The author expresses the thesis that the legislators did not quite reasonably link criminal-legal grounds of the expedited procedure with the system of categories of crimes.The methodology. The author used general scientific methods (dialectical, historical, methods of formal logic, system analysis) as well as method of formal legal interpretation of Russian Criminal Code and judicial decisions of Russian courts.The main results, scope of application. The criminal and legal basis of certain criminal procedure is a package of criminal law standards, for the implementation of which a certain criminal and procedural form is intended. The parameters of the substantive basis of criminal proceedings are set with the signs that shall be indicated in the Code of Criminal Procedure and may change. It directly refers to the expedited procedure for adopting a court ruling, by Chapter 40 of the Russian Criminal Procedure Code. Initially, it was assumed that the application of this procedure is permissible in criminal cases concerning crimes the punishment for which does not exceed 5 years imprisonment in accordance with the Russian Criminal Code. The expedited court proceedings began to be applied in criminal cases concerning crimes, the punishment for which does not exceed 10 years imprisonment in accordance with the Russian Criminal Code, since 2003. The Russian Supreme Court made an attempt to reduce the application of court proceedings provided by Chapter 40 of the Russian Criminal Procedure Code in 2019. It turned out to be successful. Legislators have changed the basic criterion that determines the substantive basis for an expedited procedure for adopting a court ruling. Now the system of categories of crimes is this basis. The system of categories of crimes presented in Article 15 of the Russian Criminal Code is not stable enough and is based on a set of provisions of this Code, but the sanctions for many crimes are not scientifically and practically grounded in this Code. In addition, the classification of crimes enshrined in Article 15 of the Russian Criminal Code is based on such a criterion as the nature and degree of public danger of the crime. These categories are among the most complex in the science of criminal law.Conclusions. The use of categories of crimes as a criterion for determining the criminal legal basis of the expedited procedure for making a court decision significantly complicates the application of the expedited procedure.

scholarly journals Subject and limits of examination evidence in the proceedings of the criminal case in the court of first instance

2020 ◽  
Vol 6 (3) ◽  
pp. 186-195
Author(s):  
Ilya N. Yefimovykh
Keyword(s):  
Criminal Procedure ◽  
Criminal Case ◽  
Criminal Proceedings ◽  
Criminal Cases ◽  
Judicial Practice ◽  
Criminal Procedure Law ◽  
The Subject ◽  
Court Proceedings ◽  
Court Of First Instance ◽  
Special Order

The article analyzes the norms of the criminal procedure law, the opinions of scientists, judicial practice materials related to the examination of evidence in criminal proceedings in the court of first instance, on the basis of which the author proposed definitions of the notions subject of examination evidence and limits of examination evidence they were compared with the concepts of subject of proof and limits of proof. The study used such research methods as logical, system-structural, statistical. As a result of a study of specific court decisions in criminal cases, differences in the understanding of evidence and the examination of evidence were revealed. A distinction has been made between the subject and the object of the study of evidence at the court hearing. The question of determining the subject matter and the limits of the examination of evidence was analyzed, including with regard to the consideration of the criminal case in a special order of judicial decision of the court, with the consent of the accused with the accusation. The rationale for the view that the examination of evidence takes place during the examination of a criminal case under a special court procedure is given, the circumstances that can be established during the court session, namely, the circumstances that may lead to exemption from punishment, as well as the postponement are analyzed. serving the sentence. These circumstances, if any, are mandatory to be established in court proceedings through the examination of evidence. According to the results of the analysis, proposed measures to improve the norms of the criminal procedure law governing the consideration of the criminal case in a special order of the trial. The question of the scope of the examination of evidence was considered in conjunction with the norms of the criminal procedure law, which established the grounds for the return of the criminal case to the prosecutor.

scholarly journals FEATURES OF THE IMPLEMENTATION OF THE PRINCIPLE OF PRESUMPTION OF INNOCENCE IN CRIMINAL PROCEEDINGS OF PRIVATE PROSECUTION

2020 ◽  
Vol 30 (6) ◽  
pp. 875-880
Author(s):  
E.F. Tensina
Keyword(s):  
Russian Federation ◽  
Criminal Procedure ◽  
Criminal Case ◽  
Presumption Of Innocence ◽  
Criminal Proceedings ◽  
Criminal Cases ◽  
Procedure Code ◽  
Special Procedure ◽  
The Russian Federation ◽  
Procedural Rights

The article reveals the nature of the claim of a private prosecution, which establishes the freedom to dispose of material and procedural rights. The forms of manifestation of dispositive principles in the material and procedural aspects in the course of criminal proceedings are determined. Taking into account the nature of the claim of a private prosecution, various models of proceedings in criminal cases of a private prosecution and the peculiarities of the implementation of the provisions of the criminal procedure principle of the presumption of innocence are considered. The author critically assesses the legal constructions that allow the application of a special procedure for making a court decision in criminal proceedings of a private prosecution if the accused agrees with the charge brought. In particular, taking into account the provisions of the principle of the presumption of innocence, it is concluded that it is inadmissible to apply Chapter 40 of the Criminal Procedure Code of the Russian Federation when considering a criminal case of a private prosecution if it is initiated by filing an application directly with a magistrate in the manner prescribed by Art. 318 of the Code of Criminal Procedure of the Russian Federation or when investigating a criminal case of this category in the form of an abbreviated inquiry, regulated by Ch. 32.1 of the Criminal Procedure Code of the Russian Federation.

On the quality of pre-trial proceedings

2019 ◽  
pp. 391-399
Author(s):  
Igor Vladimirovich Ovsyannikov
Keyword(s):  
Rule Of Law ◽  
Negative Impact ◽  
Criminal Proceedings ◽  
Criminal Cases ◽  
The Rule Of Law ◽  
Crime Detection ◽  
The Impact ◽  
Special Order ◽  
Objective Research

We consider the problem of the pre-trial proceedings quality and the impact on it of the shortcomings of the regulation of the procedural order of consideration of crimes reports, the special trial order, as well as the practice of their application. We characterize the dualistic nature of the previously conducted reform of the procedural order of crimes reports and strengthening the rule of law at the stage of criminal cases, which, at first glance, seems to be a solution to the problem of crime detection. We designate the expediency of refusal in the legislative order from the production of investigative actions during pre-investigation inspections and from the procedural terms of such inspections. Referring to the practice of courts of a special order of court decision, we note that the simplification and acceleration of criminal proceedings is permissible, but the existing rules of a special order should not be interpreted as a rejection of impartial and objective research by the court of the evidence available in the case, even if indirectly – on the case materials. It is stated that the shortcomings of the special order regulation and the practice of its application have a negative impact on the quality of both judicial and pre-trial proceedings. In addition, we propose scientifically based measures aimed at correcting the above shortcomings.

scholarly journals Counteraction to Miscarriage of Justice in Ukraine

2019 ◽  
Vol 2 (3) ◽  
pp. 96-105
Keyword(s):  
Law Enforcement ◽  
Criminal Law ◽  
Criminal Procedure ◽  
Point Of View ◽  
Criminal Proceedings ◽  
Criminal Cases ◽  
Criminal Proceeding ◽  
Specific Regulation ◽  
Miscarriage Of Justice

Investigation of crimes against justice in Ukraine is among topical problems of miscarriage of justice. Hundreds of criminal cases are recorded as a crime in the Official Register in Ukraine but only a few have been brought to the court. In this article we try to approach this problem in three ways: from the point of view of criminal law, criminal procedure and criminalistic measures of counteraction to miscarriage of justice. Such an approach helps to demonstrate problems of investigator, prosecutor and judge at different stages of criminal proceeding. Special attention is paid to specific regulation of the issues of criminal proceedings against a certain category of persons, including judges. Mistakes of representatives of law enforcement bodies become visible as a result of analyzing of real criminal cases. Such an analysis is aimed to disclose the problem of counteraction to miscarriage of justice in Ukraine.

scholarly journals Problems with Online Criminal Justice in Criminal Procedure Law Due to the Covid-19 Pandemic

2021 ◽  
Vol 5 (3) ◽  
pp. 436
Author(s):  
Ida Bagus Gde Subawa
Keyword(s):  
Criminal Justice ◽  
Virus Disease ◽  
Criminal Procedure ◽  
Literature Study ◽  
Criminal Cases ◽  
Procedural Law ◽  
Criminal Procedure Law ◽  
Court Proceedings ◽  
The Republic ◽  
The Government

The world is in crisis due to the Covid-19 pandemic. Corona Virus Disease 2019 (Covid-19) is a disease that was first discovered in the city of Wuhan, China. The transmission of Covid-19 in the People's Republic of China (PRC) occurred in 2019 and caused the death of Chinese citizens. By early 2020, the spread had spread to every country, including Indonesia. The wide spread of Covid-19 throughout Indonesia has resulted in the government declaring a health emergency and implementing a lockdown policy by limiting activities that trigger the massive spread of the Covid-19 virus. Activities that were initially carried out offline must be carried out online, and one of these activities is court proceedings. Due to the Covid-19 pandemic, every activity, including the judiciary, is carried out online. This study aims to examine the problems that occur as a result of the implementation of online criminal justice in criminal procedural law. This research is descriptive research with a literature study method. The results of the study show that the implementation of online trials creates problems that are considered inconsistent with several principles and contrary to the Criminal Procedure Code, some of which are the validity of evidence in court, then there is an examination of the defendant in court until the last one is the personnel and equipment. which is not supported. Another problem is the Regulation of the Supreme Court of the Republic of Indonesia No. 4 of 2020 concerning the Administration and Trial of Criminal Cases in Courts Electronically which is contrary to the principles of Courts Open to the Public and Quick Trials.

scholarly journals BASIC MODEL OF SEPARATE METHODIC OF JUDICIAL PROCEEDINGS: TASKS, CONTENT, STRUCTURE

2021 ◽  
Vol 77 (4) ◽  
pp. 164-170
Author(s):  
Yuriy Myroshnychenko ◽  
Keyword(s):  
Main Task ◽  
Negative Consequences ◽  
Criminal Proceedings ◽  
Criminal Cases ◽  
Legal Proceedings ◽  
Basic Model ◽  
Judicial Investigation ◽  
Judicial Proceedings ◽  
Court Proceedings ◽  
Judicial Procedure

The article is devoted to the problem of building a basic model of methodic judicial procedure, which in its content should disclose the activities of the court at all stages of the judicial system, give recommendations on the choice of its directions, procedural actions, use of the most appropriate means of influencing specific court situations complexes of procedural actions and tactics of their carrying out at various stages of judicial proceedings. The basic model of judicial methodical criminalistics complex may have the following structure: a) characteristic of the proceedings of a certain type, including the purpose, objectives and directions of judicial investigation; b) typical court situations that correspond to a certain stage of court proceedings; c) typical systems (algorithms) of procedural actions and criminalistics means of influencing judicial situations in order to implement the tactical tasks stipulated by them. The main task of building a basic model methodic of judicial procedure is to study it from a criminalistics standpoint and develop on the basis of knowledge (identified patterns) practical recommendations for decisions and actions of the court in typical situations of the general judicial procedure. Among the tasks of creating a basic judicial methodic can also include: 1) substantiation of the system of judicial proceedings; 2) selection of typical court situations in relation to each of its stages with the disclosure of the main activities of the court to resolve them; 3) development of generalized tactics of procedural actions, characteristic for each stage of court proceedings; 4) identification of the main forms of counteraction to criminal proceedings and development of ways to minimize its negative consequences. Along with the presence of general patterns of legal proceedings, on which the basic model of judicial methodics is based, it is legitimate to assume the presence of a number of features inherent in certain types of legal proceedings and criminal cases classified according to other criteria. Tier сriminalistic support of requires the development of separate scientific-methodical complexes of a lesser degree of generalization.

scholarly journals Criminal Procedure Code of Russia: Twenty Years Later (2001–2021)

2021 ◽  
Vol 3 (3) ◽  
pp. 167-188
Author(s):  
Oksana V. Kachalova ◽  
◽  
Viktor I. Kachalov
Keyword(s):  
Criminal Justice ◽  
Russian Federation ◽  
Criminal Procedure ◽  
Legal Regulation ◽  
Federal Law ◽  
Criminal Proceedings ◽  
Criminal Cases ◽  
Procedure Code ◽  
The Russian Federation ◽  
The Impact

Introduction. 2021 marks the 20th anniversary of the Criminal Procedure Code of the Russian Federation, adopted by the State Duma on November 22, 2001 by Federal Law No. 174-FZ. The development of criminal procedure legislation in these years was not always consistent, often characterized by chaotic and hasty measures. Nevertheless, the main factors that determine the development of modern criminal procedure legislation, as well as the key trends in the legal regulation of criminal procedure legal relations, have remained fairly stable for twenty years. Theoretical Basis. Methods. The object of the study is the norms of criminal procedure law that have emerged and developed during the period of the Code of Criminal Procedure of the Russian Federation since 2001. The methodological basis of the study is the general dialectical method of scientific knowledge, which allowed us to study the subject of the study in relation to other legal phenomena, as well as general scientific methods of knowledge (analysis, synthesis, induction, deduction, analogy, and modelling) and private scientific methods of knowledge (formal legal, historical-legal, and comparative-legal). Results. Among the variety of various factors that determine the development of modern criminal procedure legislation, there are several main ones: 1. The impact of international standards in the field of criminal justice on Russian criminal proceedings. Having ratified the European Convention for the Protection of Citizens’ Rights and Freedoms in 1998, Russia voluntarily assumed obligations in the field of ensuring citizens rights and freedoms, as well as creating the necessary conditions for their implementation. Among the most important criminal procedure norms and institutions that have emerged in the system of criminal procedure regulation under the influence of the positions of the ECHR, the following are notable: a reasonable period of criminal proceedings, the rights of participants in the verification of a crime report, the disclosure of the testimony of an absent witness at a court session, and alternative preventive measures to detention. 2. Optimisation of procedural resources and improvement of the efficiency of criminal proceedings. From the very beginning of the Criminal Procedure Code of the Russian Federation, there was a special procedure for judicial proceedings, which is a simplified form of consideration of criminal cases, provided for in Chapter 40 of the Criminal Procedure Code of the Russian Federation. In 2009, this procedure was extended to cases with concluded pre-trial cooperation agreements (Chapter 401 of the Code of Criminal Procedure of the Russian Federation), and in 2013, the institute of abbreviated inquiry appeared in the Code of Criminal Procedure of the Russian Federation (Chapter 321 of the Code of Criminal Procedure of the Russian Federation). 3. Social demand for increasing the independence of the court, and the adversarial nature of criminal proceedings. Society’s needs to improve the independence of judges, increase public confidence in the court, transparency and quality of justice led to the reform of the jury court in 2016 (Federal Law of 23 June 2016 N 190-FZ). As a result of the reform, the court with the participation of jurors began to function at the level of district courts, the jurisdiction of criminal cases for jurors was expanded, the number of jurors was reduced from 12 to 8 in regional courts and 6 in district courts. However, practice has shown that sentences handed down by a court on the basis of a verdict rendered by a jury are overturned by higher courts much more often than others due to committed violations, which are associated, among other things, with the inability to ensure the objectivity of jurors. In the context of a request for an independent court, Article 81 of the Criminal Procedure Code of the Russian Federation on the independence of judges (Federal Law of 2 July 2013 N 166-FZ) was adopted. 4. Reducing the degree of criminal repression. In the context of this trend, institutions have emerged in the criminal and criminal procedure laws that regulate new types of exemption from criminal liability. In 2011, Article 281 “Termination of criminal prosecution in connection with compensation for damage” was adopted, concerning a number of criminal cases on tax and other economic crimes (Federal Law of 7 December 2011 N 420). In 2016, the Criminal Procedure Code of the Russian Federation introduced rules on the termination of a criminal case or criminal prosecution in connection with the appointment of a criminal law measure in the form of a court fine (Federal Law of 3 July 2016 N 323-FZ). 5. Digitalisation of modern society. The rapid development of information technologies and their implementation in all spheres of public life has put on the agenda the question of adapting a rather archaic “paper” criminal process to the needs of today, and the possibilities of using modern information technologies in the process of criminal proceedings. Among the innovations in this area, it should be noted the appearance in the criminal procedure law of Article 1861 “Obtaining information about connections between subscribers and (or) subscriber devices” (Federal Law of 1 July 2010 N 143-FZ), Article 4741 “The procedure for using electronic documents in criminal proceedings” (Federal Law of 23 June 2016 N 220-FZ), the legal regulation of video-conferencing in criminal proceedings (Federal Law of 20 March 2011 N 39-FZ), and the introduction of audio recording of court sessions (Federal Law of 29 July 2018-FZ N 228-FZ), etс. Currently, the possibilities of further digitalisation of criminal proceedings, and the use of programs based on artificial intelligence in criminal proceedings, ets. are being actively discussed. Discussion and Conclusion. The main factors determining the vector of development of modern criminal justice should, in our opinion, include the impact of international standards in the field of criminal justice on Russian criminal justice; optimisation of procedural resources and the need to improve the efficiency of criminal justice, social demands for strengthening the independence of the court, adversarial criminal proceedings; the needs of society to reduce the degree of criminal repression, and digitalisation of modern society.

scholarly journals Compensation for Damage Caused by a Crime in the Socialist Republic of Vietnam and the Russian Federation

2021 ◽  
Vol 9 (2) ◽  
pp. 211-220
Author(s):  
Nguyen Van Tien ◽  
Viktor Victorovich Pushkarev ◽  
Ekaterina Viktorovna Tokareva ◽  
Alexey Vasilyevich Makeev ◽  
Olga Rinatovna Shepeleva
Keyword(s):  
Russian Federation ◽  
Criminal Law ◽  
Criminal Procedure ◽  
Criminal Proceedings ◽  
Criminal Cases ◽  
Socialist Republic ◽  
Moral Damage ◽  
Legitimate Interests ◽  
The Russian Federation ◽  
Compensation For Damage

In criminal proceedings of Vietnam, in contrast to the Code of Criminal Procedure of the Russian Federation, it is advisable to separate physical, material and moral damage that may be caused by the crime or socially dangerous act prohibited by the criminal law, the rights and legitimate interests of natural or legal persons. The article is devoted to solving the problem of compensation for damage caused by a crime in pre-trial proceedings in criminal cases, based on the study of Russian and Vietnamese criminal procedure legislation, practice, and results of its application. The conclusions are subject to study and implementation in the law.Keywords: Compensation for harm; Investigation; Rights and legitimate interests of participants in criminal proceedings Kompensasi untuk Kerusakan yang Disebabkan oleh Kejahatan di Republik Sosialis Vietnam dan Federasi Rusia Abstrak:Berbeda dengan Kode Acara Pidana Federasi Rusia, lebih baik dalam proses pidana Vietnam untuk memisahkan kerugian fisik, material, dan moral yang disebabkan oleh kejahatan atau tindakan berbahaya secara sosial yang dilarang oleh hukum pidana dari hak dan kepentingan sah orang atau badan hukum. Berdasarkan kajian undang-undang prosedur pidana Rusia dan Vietnam, praktik, dan hasil penerapannya, artikel ini dikhususkan untuk memecahkan masalah kompensasi atas kerusakan yang disebabkan oleh kejahatan dalam proses pra-persidangan dalam kasus pidana. Kesimpulan sedang dipelajari dan akan dimasukkan ke dalam undang-undang.Kata Kunci: Kompensasi untuk kerugian; Penyelidikan; Hak dan kepentingan sah peserta dalam proses pidana Возмещение вреда причиненного преступлением в социалистической республике Вьетнам и Российской Федерации АннотацияСтатья посвящена разрешению проблемы возмещения вреда, причиненного преступлением, в досудебном производстве по уголовным делам, на основе исследования российского и вьетнамского уголовно-процессуального законодательства, практики и результатов его применения. Выводы подлежат изучению и внедрению в законКлючевые Слова: возмещение вреда, расследование, права и законные интересы участников уголовного процесса, следователь, дознаватель

scholarly journals Investigation of the Purpose, Goals and Objectives of the Criminal Procedure by means of Systemic Approach

2021 ◽  
Vol 16 (4) ◽  
pp. 142-151
Author(s):  
V. I. Ivanov
Keyword(s):  
Criminal Law ◽  
Mutual Influence ◽  
Preliminary Investigation ◽  
Hierarchical Structures ◽  
Criminal Procedure ◽  
Criminal Prosecution ◽  
Criminal Proceedings ◽  
Criminal Process ◽  
Procedural Law ◽  
Goals And Objectives

The purpose of the paper is to conduct a systemic study of the internal structure and functions of criminal procedural activity based on patterns of formation of tree-like hierarchical structures, to determine the goals and objectives of criminal proceedings at different levels of the system hierarchy. Within the framework of the study, the criminal procedure is considered as a system with complex inter-element relationships and its own mutual influence on its structural elements. Based on the distinction between the categories "purpose", "goal", "result", the author concludes that the purpose of the criminal process is to resolve the materials on the merits in the production of the preliminary investigation bodies and the court in accordance with the requirements of criminal procedural law providing for criminal law application. The study establishes the possibility of achieving the goal of the criminal procedure at any stage in the case of the simultaneous fulfillment of two conditions: the identification of objective criminal procedural grounds for the completion of the criminal process using the criminal law and ensuring the implementation of the principles of criminal proceedings. Through the goals and principles of criminal procedural activity, the author defines the objectives and main functions of criminal proceedings, identifies the general goal and objectives of the bodies of inquiry, preliminary investigation and the court. The author concludes that the establishment of objective criminal procedural grounds for the resolution of materials in production with the application of criminal law is ensured because of preliminary verification of the materials, preliminary investigation or the implementation of the functions of the judiciary by solving the tasks facing the bodies of inquiry, investigation and court. The paper establishes the real purpose and goals of criminal prosecution, defense, judicial and departmental control, prosecutorial and judicial supervision.

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